[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4791 Introduced in House (IH)]

  2d Session
                                H. R. 4791

 To establish rules for the payment of damage awards for future losses 
               in certain health care liability actions.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 10, 1998

 Mr. Barton of Texas introduced the following bill; which was referred 
                   to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To establish rules for the payment of damage awards for future losses 
               in certain health care liability actions.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PAYMENTS FOR FUTURE LOSSES IN A HEALTH CARE LIABILITY 
              ACTION.

    (a) In General.--In any health care liability action, brought under 
Federal law or in a Federal court, in which the damages awarded to a 
claimant for future economic and noneconomic loss combined exceed 
$50,000, the claimant shall not be required to receive such damages in 
a single, lump-sum payment.
    (b) Periodic Payments.--A claimant who is awarded damages described 
in subsection (a) shall be entitled to request the court to order that 
such damages be paid in whole or in part on a periodic basis. A court 
awarding such periodic payments shall attempt to ensure that the amount 
of such payments, along with any lump-sum payment, constitute a full 
recovery of the claimant's future loss and that the payment schedule is 
in the best interests of the claimant.

SEC. 2. NONAPPLICABILITY.

    Section 1 shall not apply with respect to any health care liability 
action--
            (1) for damages arising from a vaccine-related injury or 
        death to the extent that title XXI of the Public Health Service 
        Act (42 U.S.C. 300aa-10 et seq.) applies to the action; or
            (2) under the Employee Retirement Income Security Act of 
        1974 (29 U.S.C. 1001 et seq.).

SEC. 3. FINALITY OF JUDGMENT.

    Except where specifically authorized by statute, the judgment of a 
court awarding periodic payments described in section 1(b) may not, in 
the absence of fraud, be reopened at any time to contest, amend, or 
modify the schedule or amount of the payments.

SEC. 4. ASSURANCE OF FUTURE PERIODIC PAYMENTS.

    A court awarding periodic payments described in section 1(b) shall, 
upon request of the claimant to receive the award, require the person 
ordered to make the payments to make assurances that satisfy the court 
that the payments will be made by--
            (1) making a qualified assignment (as described in section 
        130 of the Internal Revenue Code of 1986) of the periodic 
        payment liability;
            (2) purchasing an annuity contract issued by a company 
        licensed to do business as an insurance company under the laws 
        of any State;
            (3) purchasing obligations of the United States; or
            (4) providing other assurances.

SEC. 5. LUMP-SUM SETTLEMENTS.

    This Act shall not be construed to preclude a settlement that 
provides for a single, lump-sum payment.

SEC. 6. DEFINITIONS.

    In this Act--
            (1) the term ``claimant'' means any person who brings a 
        health care liability action and any person on whose behalf 
        such an action is brought;
            (2) the term ``health benefit plan'' means--
                    (A) a hospital or medical expense incurred policy 
                or certificate;
                    (B) a hospital or medical service plan contract;
                    (C) a health maintenance subscriber contract; or
                    (D) a Medicare+Choice plan (offered under part C of 
                title XVIII of the Social Security Act),
        that provides benefits with respect to health care services;
            (3) the term ``health care liability action'' means a civil 
        action against--
                    (A) a health care provider;
                    (B) an entity which is obligated to provide or pay 
                for health benefits under any health benefit plan 
                (including any person or entity acting under a contract 
                or arrangement to provide or administer any health 
                benefit); or
                    (C) the manufacturer, distributor, supplier, 
                marketer, promoter, or seller of a medical product,
        in which the claimant alleges a claim (including third party 
        claims, cross claims, counter claims, or contribution claims) 
        based upon the provision of (or the failure to provide or pay 
        for) health care services or the use of a medical product;
            (4) the term ``health care provider'' means any person 
        engaged in the delivery of health care services in a State that 
        is required by the laws or regulations of the State to be 
        licensed or certified by the State to engage in the delivery of 
        such services in the State;
            (5) the term ``health care services'' means services 
        eligible for payment under a health benefit plan, including 
        services related to the delivery or administration of such 
        services; and
            (6) the term ``medical product'' means, with respect to the 
        allegation of a claimant, a drug (as defined in section 
        201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 
        U.S.C. 321(g)(1)) or a device (as defined in section 201(h) of 
        the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(h)) 
        if--
                    (A) such drug or device--
                            (i) was subject to premarket approval under 
                        section 505 or 515 of the Federal Food, Drug, 
                        and Cosmetic Act (21 U.S.C. 355 or 360e) or 
                        licensed under section 351 of the Public Health 
                        Service Act (42 U.S.C. 262) with respect to the 
                        safety of the formulation or performance of the 
                        aspect of such drug or device which is the 
                        subject of the claimant's allegation or the 
                        adequacy of the packaging or labeling of such 
                        drug or device; and
                            (ii) was approved by the Food and Drug 
                        Administration at the time that the claimant's 
                        claim of action arose; or
                    (B) the drug or device is generally recognized as 
                safe and effective under regulations issued by the 
                Secretary of Health and Human Services under section 
                201(p) of the Federal Food, Drug, and Cosmetic Act (21 
                U.S.C. 321(p)),
        except that such term shall not include any product that the 
        claimant can show gained approval for marketing from the Food 
        and Drug Administration as a result of withheld information, 
        misrepresentation, or an illegal payment by the manufacturer of 
        the product.
                                 <all>